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Articles on Wisconsin legal history

Black Wisconsinite's struggle for the vote

Written by Joseph A. Ranney, Attorney at Law
Phone: (608) 283-5612

When Wisconsin became a state very few blacks were allowed to vote anywhere in the United States. Wisconsin became one of the first states to give them the vote -- but it did so in a most unusual manner.

At the 1846 constitutional convention, a few idealists urged that Wisconsin guarantee black voting rights to vote in its Constitution. Charles Burchard of Waukesha argued eloquently that "We live in an age of progressive democracy. This spirit is opening a grand law of humanity that looks further than the skin to say who shall have rights." Most Wisconsinites detested slavery, but many also felt blacks were inferior to whites and had no desire to give them political power. The most Burchard could do was persuade the convention to leave the issue up to the people.

In 1849 the Legislature passed law allowing black men to vote. The Constitution stated that the law could only go into effect if approved by "a majority of all the votes cast" in a popular referendum. The voters approved the law by a vote of 5,265 to 4,075 but less than half of all voters in that election voted on the referendum. Everyone believed that the law had failed.

The Legislature passed new suffrage laws in 1857 and 1865. The voters rejected both laws although the 1865 law nearly passed, garnering 46% support.

At this point fate intervened in the person of Ezekiel Gillespie, one of the leaders of Milwaukee 's black community. At the suggestion of his attorney Byron Paine, Gillespie tried to register to vote in the 1865 election to publicize the suffrage issue. Milwaukee 's election officials turned Gillespie away from the polls, and Gillespie then asked the state Supreme Court to give him the right to vote.

Paine pleaded on Gillespie's behalf that black suffrage was an essential component of the ideals of freedom and democracy for which the Civil War had just been fought. More practically, he argued that the Constitution's requirement that suffrage be approved by "a majority of all the votes cast" meant a majority of votes cast on the suffrage issue, not a majority of all votes cast for any issue on the ballot.

To almost everyone's surprise, the Supreme Court agreed with Paine. In the case of Gillespie v. Palmer (1866), the court ruled that because a majority of people voting on suffrage in 1849 had approved it, blacks had actually had the right to vote in Wisconsin for the last 17 years! Voting rights was only the first of many areas in which black Wisconsinites have had to fight for their rights but it was one in which they won a decisive, if belated victory.

Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.